Jackson v. Marvell School District Motion for Permission to Appeal Upon the Original Papers, to Consolidate Appeals, and for Summary Reversal

    IN THE
t (  9  2 -

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT 

•N0o 74-2333 ( O o O  6,00

RICHARD L. CARMICAL, et al. ,
petitioners-Appellants,

vs.
WALTER E. CRAVEN, et al.,

Respondents-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA

REPLY BRIEF FOR APPELLANTS RICHARD L. CARMICAL, ET AL.

WILLIAM BENNETT TURNER 
LOWELL JOHNSTON 12 Geary Street 

San Francisco, Calif. 94109
JUDITH ANN CIRAOLO 360 Taurus Avenue 

Oakland, California
JACK GREENBERG 
CHARLES STEPHEN RALSTON 10 Columbus Circle 

Suite 2030
New York, N.Y. 10019

Attorneys for petitioners- Appellants



Index

Page
ARGUMENT

1.........................................................1
II.

A. "Retroactive" application of Carmical 1........... 4
B. There is No Basis For A Finding of Waiver

Here. . , . ...................... . ............ 8

Table of Cases

Bridgeport Guardians v. Members of Bridgeport Civil 
Service Comm., 354 F. Supp. 778 (D. Conn. 1973), aff1d,
482 F.2d 1333 (2nd Cir. 1973) ..............................

Carter v. Jury Commission of Greene county, 396 U.S.
320 (1970) ................  . . . . . . . . . . . .  ........  2

Chance v. Board of Examiners, 458 F.2d 1167 (2nd 
Cir. 1972).............................. . .~.............. 1

Destefano v. Woods, 392 U.S. 631 (1968)...................... 6
Duncan v. Louisiana, 391 U.S. 145 (1968) .................... 6
Fay v. Noia, 372 U.S. 391 (1963) ............................ 9
Hernandez v. Texas, 347 U.S. 475 (1954) ....................... 6
Hairston v. Cox. 459 F.2d 1382 (4th Cir. 1972) .............. 6
Humphrey v. Cady, 405 U.S. 504 (1972)........................ 8
Johnson v. zerbst, 304 U.S. 458 (1938) ........ .. 9
Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) .............. 9
McNeil v. North Carolina, 368 F.2d 313 (4th Cir. 1966) . . . .  9
Norris v. Alabama, 294 U.S. 587 (1935).......... ..............5
Scott v. Walker, 358 F.2d 561 (5th Cir. 1966)................ 4

- i -



Page
Smith v. Yeager, 465 F.2d 272 (3rd Cir. 1 9 7 2 ) ............... 6
Strauder v. West Virginia, 100 U.S. 303 (1880)........... 5
Swain v. Alabama, 380 U.S. 202 ( 1 9 6 5 ) .................... 5
Turner v. Fouche, 396 U.S. 346 ( 1 9 7 0 ) .................... 2
United States v. Scott, 425 F.2d 55 (9th Cir. 1970) . . . .  8
United States ex rel. seals v. Wiman, 304 F.2d 53
(5th Cir. 1962)............................................. 6

Vaccaro v. United States, 461 F.2d 626 (5th Cir. 1972) . . .  8
Vulcan Society v. Civil Service Comm., 360 F. Supp.
1265 (S.D. N.Y. 1973)...................................... 2

Witherspoon v. Illinois, 391 U.S. 510 (1968).............. 8

li



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 
NO. 74-2333

RICHARD L. CARMICAL, et al.,
petitioners-Appellants,

vs.
WALTER E. CRAVEN, et al.,

Respondents-Appellees.

Appeal From the united States District. Court 
For The Northern District of California

REPLY BRIEF FOR APPELLANTS RICHARD L. CARMICAL, ET AL.

I.
The arguments urged, by Respondent-Appellee are in error in 

a number of respects. First, petitioners do not rely primarily 
on employment cases arising under Title VII of the civil Rights 
Act of 1964. To the contrary, we cited and rely primarily on 
employment discrimination cases against state and local officials 
arising directly under the 14th Amendment.^ The jury discrimination

Bridgeport Guardians v. Members of Bridgeport Civil Service 
Commission, 354 F. Supp. 778 (D. Conn. 1973), aff'd, 482 F.2d 1333 
(2nd Cir. 1973); Chance v. Board of Examiners, 458 F.2d 1167 (2nd.



•  •

claim here, of course, also arises under the Fourteenth Amendment 
and respondent advances no argument whatsoever as to why the same 
standards should not apply. Moreover, as petitioners point out 
in their main brief at page 15, one of the reasons why the courts 
have read broadly the provisions of Title VII is that it expresses 
Congressional policy to root out employment discrimination. The 
Congressional policy (now embodied in 18 U.S.C. §243) against 
discrimination in jury selection is of even longer standing, 
dating from 1875. It was this fact that Justice white, relied 
upon in his concurring opinion in peters v. Kiff, 407 U.S. 493,
505 (1972), granting whites standing to challenge the exclusion
of* blacks from juries.

Second, respondent urges that the Supreme court's decision in 
f a r h e r  v . .Tu t v  C o m m i s s i o n .  398 TT.S. 320 f l  Q7D) and  T u r n e r  v .

Fouche, 396 U.S. 346 (1970) are directly in conflict with the 
position of petitioners in this case (Brief of Respondent, p. 76.). 
This is simply not the case; rather, those decisions directly sup­
port petitioners' central contention that the burden is on the 
state to explain and justify a differential rate of exclusion of 
blacks, whatever the standard for selection is. Turner explicitly 
held that where a standard of intelligence, resulted in a much 
greater rate of exclusion of blacks the jury commissioners

1/ (Cont'd)
Cir. 1972); Vulcan Society v. Civil service Commission, 360 F. Supp. 
1265 (S.D. N.Y. 1973).

2



responsible for administering such a standard must justify the 
result. 396 U.S. at 361. petitioners here, of course, do not 
argue that the carter and Turner holdings that the states could 
require that jurors be intelligent should be overruled, but only 
that the mandate of those decisions be applied here.

Third, Respondent, in his attempt to justify the test, con­
tinues in his fundamental misunderstanding of what is at issue. 
Petitioners do not argue that those persons chosen for jury 
service by the test were not competent and proper jurors. Indeed, 
they argue that all registered voters must be presumed to be com­
petent to serve as jurors. we again point out that Alameda County 
(since 1968), all other counties in California, and the federal
C U U i .  Ld C v w I iC jl C _l_ J. i. C-AlC tail U J . y  H Q V C  l U l i L .  C x U U X A i t j  |r/ w j . J . C c o X iy

well with jury lists drawn from registered, voters without resorting 
to the use of tests such as the one at issue here.

The point is not that the test included competent jurors, but 
that it excluded persons who were also competent. This is ex­
plicitly acknowledged, by the diagram drawn by Respondent's expert, 
Dr. Rusmore, reproduced in Respondent's brief on page 40, n. 33. 
That diagram shows that the high cutting score that was used ex­
cluded. from the pool of jurors a large number of persons who in 
fact were competent to serve on juries, i.e.„ everyone above the 
horizontal line and to the left of the right-hand vertical broken 
line. it is this exclusion that is at issue here. petitioners' 
claim is simple; the clear thinking test excluded large numbers of 
persons competent to be jurors and the persons so excluded were 
disproportionately blacks and low income. The result was that the

3



ua

jury lists did not reflect a cross-section of persons competent 
to serve on juries. Thus, it was not enough for respondent to 
introduce evidence that the test selected competent jurors. It 
had to be shown that either the test did not also exclude competent 
persons or there was a compelling need to use this particular 
device for selection. That is, the respondent's burden was to 
demonstrate that there was no other means by which jurors could 
be chosen. This they did not and could not do.

Finally, with regard to the respondent's attack on the suf­
ficiency of petitioners' showing below, we again reiterate that 
the evidence points to the conclusion that blacks were under­
represented. Therefore, the burden was on the state, as the 
n a r f v  r P . s n n n s ih l f i  f o r  a rim i n i » f  e r  i nrr t h e  s y s t e m .  f.O sh o w  t h a t

in fact blacks were properly represented. See Scott v. walker, 358
2/F.2d 561 (5th Cir. 1966).

II.
A. "Retroactive" application of Carmical I.

Respondent's argument that this Court's prior decision in 
Carmical I should not be given "retroactive" application here 
must be rejected for three reasons.

•2/ we would point out to the court that petitioners requested the district court, if it felt that the evidence was not conclusive, 
to provide for the supplementation of the record by the parties 
working together towards determining, as precisely as possible, the racial composition of the jury lists. Such a procedure was 
adopted by the district court in Chance v. Board of Examiners, 330 
F. Supp. 203, 209 (SUD„N.Y. 1971) and resulted in detailed and 
reliable figures being obtained. If this Court also feels that 
the record is inconclusive as to the racial impact of the test

4



1„ There is No Question Of Retroactivity In This Case.
This Court in Carmical I. did not hold for the first time that 

exclusion of blacks from juries is unconstitutional or that 
federal law on jury exclusion is applicable to the states through 
the Fourteenth Amendment. These are ancient principles. There 
is no occasion for this Court to consider the doctrine of 
"retroactivity", because Carmical marks no departure from 
previously prevailing law; nor does it involve the application of 
a constitutional right to the state for the first time. Rather, 
Carmical is only illustrative of a long and consistent line of 
erases going back 93 years to Strauder v. west Virginia, 100 U.S.
303 (1880).

rnhat- r'amlnai r!i H not- announce any new constitutional rule 
is amply demonstrated by this Court's opinion. Thus, although 
the respondent here has urged that Carmical is in conflict with 
Swain v. Alabama, 380 U.S. 202 (1965), and therefore marks a
departure with prevailing law, the fact is that the same argument 
was made on the earlier appeal. This Court discussed Swain, dis­
tinguished it, and rejected the state's argument that Swain fore­
closed. Carmical1s claims. 457 F.2d at 587. Therefore, this Court 
clearly did not view its decision as a departure in the law. 
Furthermore, Carmical I. was based on a lengthy discussion of 
prior decisions of the Supreme Court and other Courts of Appeals 
going back to, e.g„, Norris v. Alabama, 294 U.S. 587 (1935), and

2/ (Cont'd)
then it would be appropriate to remand to the district court for 
further proceedings in accord with petitioners' request.

5



Hernandez v. Texas, 347 U.S. 475 (1954), decided long before Carmical 
and petitioner here were tried.--/ The Court placed particular reli- 
iance on a 1962 decision of the Fifth Circuit (which in turn re­
lied on prior holdings of the Supreme Court) that held "it is 
not necessary . . .  to establish ill will, evil motive, or 
absence of good faith." United States ex rel seals v. Wiman,
304 F.2d 53, 65 (5th Cir. 1962).^/ In other words, it was no 
departure from previous law to hold that intentional or purpose­
ful discrimination by jury commissioners need not be proved.

Nor, for similar reasons, is pestefano v. Woods, 392 U.S.
631 (1968), of help to the respondent, because the present case
does not present an instance where a constitutional guarantee is 
applied to the states for the first time. pestefano held that
, . . . _ ^  • •    t t n  i/ltr f 1 r> /C O  \ 1 ^

L X i C  U ^ U I O I U U  juXX v »  ^  ^  -*■- ̂  ** ̂  •*- * ^  v ^ /  / f **-------

ing for the first time that the Sixth Amendment right to a jury 
trial applies to the states, should not be given retroactive 
effect. Here, the long line of Supreme Court decisions reaching 
back to Strauder v. West Virginia, supra, has consistently forbade

—/ The court said that "The opinions take into account the 
historical prevalence of intentional discrimination against 
Negroes, but the court has never implied that the absence of 
that factor destroys a prima facie case." 457 F.2d at 586.

The Third Circuit has reached the same conclusion. see 
Smith v. Yeaqer, 465 F.2d 272 (3d Cir. 1972). The Fourth Circuit, 
in Hairston, v, Cox, 459 F.2d 1382, 1384 (4th Cir. 1972), said that

"Since Neal v. Pelaware, 103 U.S. 370, 26 L.Ed. 567 (1881), 
federal courts have allowed Negroes complaining of indict­
ment or conviction by juries from which members of that race were systematically excluded to rely upon circumstantial 
factors tending to show discriminatory practices in order to 
obtain relief, rather than to require direct proof of dis­
crimination. "

6



5/the states from discriminating against blacks in jury selection.-^
2. The Attorney General Has Admitted That Carmical Is Fully 
Retroactive.

The Attorney General (by the same Deputy representing 
the state in this case) sought certiorari from the Supreme Court 
in Carmical I. In the Attorney General's reply brief in the 
Supreme Court, it was argued that the Court should exercise cer­
tiorari jurisdiction because of the great potential impact of 
the decision in upsetting convictions in Alameda County. In the 
reply brief, the Attorney General represented to the Supreme
Court that the carmical decision "is totally retroactive" (reply % 1
brief, page 2). Having made such a flat admission to the 
Supreme Court, the Attorney General cannot in good faith now 
assume an entirely contrary position. If the Attorney General 
is not formally estopped from urging a contrary position, at 
least the admission in Carmical is strong evidence against the 
state's position here. see generally, 5 Wright & Miller, Federal 
Practice and Procedure, 377 (1969).
3. settled. Principles Require The Application Of Carmical To 
This Case.

Even assuming Carmical did announce a new rule of constitutional

5/ The respondent's attempted reliance on peters v. Kiff, 407 
U.S. 495 (1972), is also misplaced. First, it was not the judgment 
of the Supreme Court that the peters rule on standing be prospect­
ive —  three concurring justices merely suggested that in future 
cases white defendants could challenge exclusion of blacks from 
juries. Second, peters in fact involves a new rule of law in the 
Supreme court. Prior to peters, the right of whites to challenge 
the exclusion of blacks had not been recognized. As we have ex­plained , Carmical I. did not involve a new rule of law.

7



law, settled principles require its "retroactive" application. 
Ordinarily, of course, all decisions apply retroactively; in ex­
ceptional circumstances a few decisions have been held prospective 
only. See generally United States v. Scott, 425 F.2d 55, 58 (9th 
Cir. 1970) (en banc). The specific constitutional right involved 
here has never been held prospective. Indeed, "systematic ex­
clusion of blacks from juries calls for retroactive vindication." 
Vaccaro v. United States, 463 F.2d 626, 629 (5th Cir. 1972). The 
Supreme Court decision most closely in point is Witherspoon v.
Illinois, 391 U.S. 510 (1968), where the Court held;•

"The jury-selection standards employed here 
necessarily undermined 'the very integrity of 
the . . .  process' that decided the petitioner's
f a t e  r o i t a t i o n  o m i t t e d !  and we  tia\re o o n o l n d e d
that neither the reliance of law enforcement 
officials [citations omitted] nor the impact of 
a retroactive holding on the administration of 
justice [citation omitted] warrants a decision 
against the fully retroactive application of the 
holding we announce today." 391 U.S. at 523, n.22.

In short, there is no basis for holding Carmical I. to be in­
applicable to the present case.
B. There is No Basis For A Finding Of Waiver Here.

As this Court said in Carmical I., a holding of deliberate 
must be based on evidence that the defendant, not his attorney, 
made an "affirmative act . . . evidencing his deliberate re­
jection of his constitutional guaranty." 457 F.2d at 584. See 
also Humphrey y, Cady, 405 U.S. 504, 517 (1972) (requiring a
knowing waiver by the defendant himself, not his attorney); McNeil

8



v. North Carolina, 368 F.2d 313 (4th Cir. 1966); Labat v. Bennett, 
365 F.2d 698, 707 (5th Cir. 1966)

The short answer to the Attorney General's novel contention 
that petitioner is bound by the rule of deliberate bypass unless 
Carmical I. announced a "new" rule of law is that the deicision 
in Carmical I. itself shows that there was no deliberate bypass 
here -- regardless of whether the court announced a new standard 
for jury selection. That is, this Court in Carmical I. did not 
rest its holding on deliberate bypass on the proposition that a 
new standard was being announced. Rather, it relied on the 
doctrine of Fay v. Noia, 372 U.S. 391 (1963), and squarely held«
that the federal standard established there must be met.

Moreover, whether a defendant has knowingly waived a 
federal constitutional right is, of course, primarily a question 
of fact, and the court below made no finding on the question.
Thus, at the most, if this court reverses the district court 
on the merits it might then be appropriate to remand for de­
cision on the issue of waiver as to petitioners Early and 
Lawrence. With regard to petitioner Carmical, on the other 
hand, this court has already held that there was no waiver. The 
respondent sought review on certiorari from the Supreme Court 
of the United States on that specific issue and certiorari was

Although the Attorney General asserts that "all parties were 'satisfied' with the jury selected," the record provides 
no support whatever for this assertion. Of course, even if 
petitioner himself said he was "satisfied" with the jury, that 
does not meet the federal standard of deliberate bypass. See 
Carmical I., supra; Humphrey v. Cady, supra; cf. Fay v. Noia, 
372 U.S. 391 (1963); Johnson vP zerbst, 304 U.S. 458 (1938).

9



denied (409 U.S. 929 (1972)), six days after the granting of 
certiorari in the case that the state now relies upon, Davis v. 
United States (cert. granted, 409 U.S. 841 (1972)), and on the 
same day that certiorari was granted in the companion case to 
Davis, Tollett v. Henderson (cert. granted, 409 U.S. 912 (1972)).
Thus, at least with regard to Carmical, the prior decision of 
this Court is the law of the case and can not be changed.

WILLIAM BENNETT TURNER '
WILLIAM E. HICKMAN 12 Geary StreetSan Francisco, California 94108
JUDITH ANN CIRAOLO 160 Taurus Avenue 

Oakland, California
JACK GREENBERG 
CHARL.ES STEPHEN RALSTON 10 Columbus Circle 

Suite 2030
New York, New York 10019 

Attorneys for petitioners-Appellants

10



Certificate of service

I hereby certify that I have served copies of the Reply
Brief for Appellants in the above case by depositing copies of
same in the United States Mail, air-mail, postage prepaid,
addressed as follows to the attorney for respondents-appellees:

Ms. Gloria F. DeHartDeputy Attorney General
6000 State Building
San Francisco, California 94102

* Dated: November 18, 1974.

n .

Asa y  }\/‘YD̂ i
Attorney for petitioners- 
Appellants

11



\